Wilks v. St. Louis & S. F. R. Co.

• Decision Date: 06 November 1911
• Court: Missouri Court of Appeals
• Parties: WILKS v. ST. LOUIS & S. F. R. CO.

141 S.W. 910

159 Mo. App. 711

WILKS v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals, Missouri.

November 6, 1911.

Rehearing Denied December 18, 1911.

1. APPEAL AND ERROR (§ 997)—REVIEW— SUFFICIENCY OF EVIDENCE—PEREMPTORY INSTRUCTION.

In view of evidence in the record, and the absence therefrom of photographs introduced in evidence, which it appears were of material aid in understanding the situation, held, in an action for injury to an employé, while assisting in coaling locomotives with a steam shovel, in a defective condition, bottomed on failure of the master to instruct and warn as to the danger, that it could not be said the court erred in refusing defendant's peremptory instruction.

2. MASTER AND SERVANT (§ 293)—INJURY TO SERVANT—FAILURE TO WARN OF DANGER— MASTER'S KNOWLEDGE—INSTRUCTIONS.

An employé's action for injury being bottomed on the bucket of a steam shovel having twisted around while he was adjusting it lengthwise with a coal car for coaling a locomotive, and on failure of the master to warn of the danger of its doing so, and there being not only a conflict of evidence as to whether it did twist, but as to whether it could, or had ever been known to, twist, when the boom of the shovel was stationary, as in the instant case, an instruction enumerating the facts, on the finding of which plaintiff was entitled to recover, should have included the fact that the employer knew or ought to have known the bucket was liable to turn, it not being required to warn unless it had, or ought to have had, such knowledge.

3. MASTER AND SERVANT (§ 153)—DUTY TO INSTRUCT AND WARN—REPRESENTATIONS OF SERVANT.

The fact that one, though only 18 years old, when applying for work, represented he was 21 years old, is a circumstance to be considered in determining the degree of care the master was bound to exercise in warning and instructing him regarding his duties; it, if believing he was of age, not owing him the same duty it would if believing him a minor or inexperienced.

4. MASTER AND SERVANT (§ 153)—DUTY TO WARN—KNOWLEDGE OF YOUTH OR INEXPERIENCE.

In a case where there is no duty on the master to instruct and warn a servant, unless he is young and inexperienced, there is no breach of duty in not doing so, unless it knows, or by the exercise of ordinary care should have known, of his youth or inexperience.

5. MASTER AND SERVANT (§ 293)—DUTY TO WARN SERVANT—KNOWLEDGE OF YOUTH OR INEXPERIENCE—INSTRUCTIONS.

An instruction, in a servant's action based on failure to instruct and warn as to danger, does not sufficiently embrace the requirement that the jury find the master knew or ought to have known of the servant's youth or inexperience, by a requirement that they find defendant "negligently" ordered him to do the work, without instructing him as to the danger.

6. MASTER AND SERVANT (§ 293)—INJURY TO SERVANT — FAILURE TO WARN — INSTRUCTIONS.

The instruction, in a servant's action bottomed on failure to warn of danger, that, if the jury find that a man of reasonable prudence would have no reasonable ground to foresee the probability of plaintiff's injury in the place where he was at work, then defendant was not guilty of negligence, contains nothing to call the jury's attention to the fact that there was submitted to them the question whether defendant knew plaintiff was a minor and inexperienced.

7. TRIAL (§ 296)—INSTRUCTIONS CURED BY OTHER INSTRUCTIONS.

An instruction, vicious or vaguely worded, is not cured by others given, except in very plain cases, free from doubt.

8. TRIAL (§ 296)—INSTRUCTIONS CURED BY OTHER INSTRUCTIONS.

Where an instruction for plaintiff attempts to cover the whole case, and tells the jury, if they find the facts as enumerated therein, verdict shall be for him, error therein, in omitting a fact necessary for him to prove, is not cured by the giving of a proper instruction on the part of defendant, including such fact.

9. DAMAGES (§ 216)—PERSONAL INJURIES— FUTURE SUFFERING—INSTRUCTIONS.

Though the injury is not permanent, yet, plaintiff testifying three months after the accident, that he is still suffering constantly with a headache, and that his eyes hurt when he tries to read, it is proper to instruct that the jury may consider future pain and suffering of plaintiff, if any, in assessing his damages.

10. TRIAL (§ 233) — INSTRUCTIONS — REFERENCE TO PLEADINGS.

An instruction referring the jury to the pleading for the acts of negligence is properly refused.

11. TRIAL (§ 260)—INSTRUCTIONS—REPETITION.

An instruction fully covered by instructions given is properly refused.

Nixon, P. J., dissenting.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Charles Wilks, a minor, by Mary A. Wilks, his next friend, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

W. F. Evans and Mann, Johnson & Todd, for appellant. Sizer & Kemp, for respondent.

GRAY, J.

Action for personal injuries, which respondent claims he sustained on the 23d day of February, 1911, while in the employ of the defendant. The plaintiff was 18 years of age on the 15th day of November, 1910. He commenced to work for the defendant on the 15th day of February, 1911. His duties were to assist another employé in coaling engines, and were performed at night. In coaling the engines a machine known as a Brown hoist was used. The hoist and the engine operating it were located on a flat car built for the purpose. The hoist was a common steam shovel. It had a boom or a long beam, and over this and down one end thereof ran wire steel cables, and to the end of the steel cables was attached the bucket or scoop by which the coal was raised. Previous to the night plaintiff claims he was injured, the method of operating the hoist had been to use three parallel tracks. On the center track stood the hoist; on the track to one side stood the coal car from which the coal was to be taken; and on the track at the other side of the hoist stood the engine, the tender of which was to be filled with coal. When a tender was to be filled, the operator started his engine, and by means of his machine turned the boom so that it would first swing to the car of coal, carrying the bucket with it. At the same time, with appliances at his hand, he unrolled the spool or windlass carrying the steel cable, and thereby lowered the bucket into the car of coal. The long way of the bucket was longer than the width of the coal car; but the operator, when the boom was working, was able to turn the bucket so that it would drop into the car, then he would close the jaws of the bucket so that it would be filled with coal, and then by the use of the machinery raise the bucket of coal, swing it from the car of coal around and directly over the tender, and then the jaws of the bucket were opened and the load dumped into the tender, and this was repeated until the engine was loaded.

Previous to the night plaintiff was injured, his duties consisted in shoveling coal from the sides of the car, so the bucket could get it. At the time he went to work the night of the 23d of February, he was informed by the foreman that the hoist had been broken, and on account thereof the bucket could not be turned by the operator if it should come down the long way across the car, and that at such times he would have to turn it with his hands so it would drop into the car. The result was that the boom had to be turned so that the end of it, to which the bucket was attached, pointed over the center of the one track, and the bucket lowered, filled, and emptied while the boom remained stationary, as neither the boom nor the bucket could be turned by the operator. To load the tenders under these circumstances, the car of coal from which the supply was to be taken, and the engine with its tender to be filled, instead of standing on two tracks, were both placed on the one track and coupled together. The boom being stationary, the engine shoved or pulled the coal car under the end of it. The engine of the hoist was then started, the windlass unrolled, and the bucket dropped into the coal car and was filled in the usual way, and then raised, and then the engine was backed, shoving the coal car out of the way and shoving the tender directly under the bucket, when the jaws of the bucket were opened and its load dumped into the tender, and this was repeated until the latter was loaded.

On the night in question, plaintiff had assisted in loading three engines, and was loading the fourth, when he claims he took hold of the bucket with his hands, and it made a sudden swing and knocked him off the car and severely injured him. As it is material, we quote his testimony on this point: "Q. Now, when it came down this time in question, tell the jury, if the car stood east and west, how did the bucket stand? A. It came down with the long ways across the car. Q. Tell the jury what you had to do and what happened. A. I took hold of it with my hands and pulled it around to me. I had a torch in one hand and caught the bucket with the other and pulled it to me, and it took a side swipe and knocked me off. Q. Had you ever seen it take one of these sudden turns before? A. No, sir." On cross-examination he testified: "It flew around and knocked me off. It turned toward me and hit me on the side."

When respondent applied to appellant for a position, he was given a blank to fill, and therein he stated he was born November 15, 1886. He testified that he made this false statement of the date of his birth because he wanted to convey the impression on the agent of the appellant that he was 21 years of age, in order to obtain employment; that he had to have a job at something, and he made this statement to get the position. Monett was the coaling point for many engines of the appellant, and, when the hoist broke, the company sent to Springfield for another one, but was using the one out of repair while...